Do Not Call Register Act 2006
No. 88, 2006
An Act to establish a Do Not Call Register, and for other purposes
Contents
Part1—Introduction
1Short title
2Commencement
3Simplified outline
4Definitions
5Telemarketing calls
6Continuity of partnerships
7Crown to be bound
8Extension to external Territories
9Extraterritorial application
Part2—Rules about making telemarketing calls
10Simplified outline
11Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register
12Agreements for the making of telemarketing calls must require compliance with this Act
Part3—Do Not Call Register
13Do Not Call Register
14Eligibility for registration
15Applications for registration
16Registration
17Duration of registration
18Administration of the Do Not Call Register—determinations
19Access to the Do Not Call Register
20Access—determinations
21Access—fees
22Application of the Privacy Act 1988 to the contracted service provider
Part4—Civil penalties
23Simplified outline
24Civil penalty orders
25Maximum penalties for contravention of civil penalty provisions
262 or more proceedings may be heard together
27Time limit for application for an order
28Civil evidence and procedure rules for civil penalty orders
29Criminal proceedings not to be brought for contravention of civil penalty provisions
30Ancillary orders—compensation
31Ancillary orders—recovery of financial benefit
32Schedule3 (infringement notices)
Part5—Injunctions
33Simplified outline
34Injunctions
35Interim injunctions
36Discharge etc. of injunctions
37Certain limits on granting injunctions not to apply
38Other powers of the Federal Court or the Federal Magistrates Court unaffected
Part6—Miscellaneous
39Nominees
40Formal warnings—breach of civil penalty provision
41Additional ACMA functions
42Operation of State and Territory laws
43Implied freedom of political communication
44Giving effect to international conventions
45Review of operation of Act
46Regulations
Schedule1—Designated telemarketing calls
1Object
2Government bodies, religious organisations and charities
3Political parties, independent members of parliament, candidates etc.
4Educational institutions
5Regulations
6Authorising the making of telemarketing calls
7Extended meaning of employee and employer
Schedule2—Consent
1Object
2Basic definition
3Duration of express consent
4Consent may not be inferred from the publication of a telephone number
5Regulations about consent
Schedule3—Infringement notices
1Object
2When an infringement notice can be given
3Matters to be included in an infringement notice
4Amount of penalty
5Withdrawal of an infringement notice
6What happens if the penalty is paid
7Effect of this Schedule on civil proceedings
8Appointment of authorised officer
9Regulations
1 Do Not Call Register Act 2006 No. 88, 2006
Miscellaneous Part 6
Section 46
Do Not Call Register Act 2006
No. 88, 2006
An Act to establish a Do Not Call Register, and for other purposes
[Assented to 30 June 2006]
The Parliament of Australia enacts:
Part1—Introduction
1 Short title
This Act may be cited as the Do Not Call Register Act 2006.
2 Commencement
(1)Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement informationColumn 1 / Column 2 / Column 3
Provision(s) / Commencement / Date/Details
1. Sections1 and 2 and anything in this Act not elsewhere covered by this table / The day on which this Act receives the Royal Assent. / 30 June 2006
2. Sections3 to 9 / The day on which this Act receives the Royal Assent. / 30 June 2006
3. Part2 / A single day to be fixed by Proclamation.
However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. / 31 May 2007 (see F2007L01114)
4. Part3 / The day on which this Act receives the Royal Assent. / 30 June 2006
5. Parts4 and 5 / At the same time as the provision(s) covered by table item3. / 31 May 2007
6. Sections39 and 40 / At the same time as the provision(s) covered by table item3. / 31 May 2007
7. Section41 / The day on which this Act receives the Royal Assent. / 30 June 2006
8. Sections42 to 45 / At the same time as the provision(s) covered by table item3. / 31 May 2007
9. Section46 / The day on which this Act receives the Royal Assent. / 30 June 2006
10. Schedules1, 2 and 3 / At the same time as the provision(s) covered by table item3. / 31 May 2007
Note:This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2)Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Simplified outline
The following is a simplified outline of this Act:
•Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.
•The main remedies for breaches of this Act are civil penalties and injunctions.
Note:The Telecommunications Act 1997 contains additional provisions about telemarketing calls. Those provisions include Part6 (industry codes and standards), Part26 (investigations), Part27 (informationgathering powers) and Part31A (enforceable undertakings).
4 Definitions
In this Act:
account includes:
(a)a free account; and
(b)a prepaid account; and
(c)anything that may reasonably be regarded as the equivalent of an account.
ACMA means the Australian Communications and Media Authority.
acquire, when used in relation to goods or services, has the same meaning as in the Trade Practices Act 1974.
agency includes:
(a)an armed force; and
(b)a police force.
Australia, when used in a geographical sense, includes the eligible Territories.
Australian number means a number that is:
(a)specified in the numbering plan referred to in section455 of the Telecommunications Act 1997; and
(b)for use in connection with the supply of carriage services to the public in Australia (within the meaning of that section).
authorise, when used in relation to the making of a telemarketing call, has a meaning affected by clause6 of Schedule1.
authorised officer means:
(a)the Chair of the ACMA; or
(b)a member of the staff of the ACMA appointed under clause8 of Schedule3.
business includes a venture or concern in trade or commerce, whether or not conducted on a regular, repetitive or continuous basis.
candidate means a person who has been nominated as a candidate under:
(a)the Commonwealth Electoral Act 1918; or
(b)a law of a State or Territory that deals with electoral matters.
carriage service has the same meaning as in the Telecommunications Act 1997.
cause has a meaning affected by subsection 11(9).
civil contravention means a contravention of a civil penalty provision.
civil penalty order means an order under subsection 24(1).
civil penalty provision means any of the following provisions:
(a)subsection 11(1);
(b)subsection 11(7);
(c)subsection 12(1);
(d)subsection 12(2);
(e)a provision of the regulations that is declared to be a civil penalty provision in accordance with paragraph 44(2)(c).
consent, when used in relation to the making of a telemarketing call, has the meaning given by Schedule2.
contracted service provider means the person (if any) who keeps the Do Not Call Register as mentioned in paragraph 13(1)(b).
data processing device has the same meaning as in the Telecommunications Act 1997.
dealing with, in relation to a telemarketing call, includes retrieving the call from a voicemail system or similar system.
designated telemarketing call has the meaning given by Schedule1.
director includes a member of the governing body of an organisation.
Do Not Call Register means the register kept under section13.
educational institution includes:
(a)a preschool; and
(b)a school; and
(c)a college; and
(d)a university.
eligible Territory means:
(a)the Territory of Christmas Island; or
(b)the Territory of Cocos (Keeling) Islands; or
(c)an external Territory prescribed for the purposes of section8.
employee has a meaning affected by clause7 of Schedule1.
employer has a meaning affected by clause7 of Schedule1.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Federal Court means the Federal Court of Australia.
goods has the same meaning as in the Trade Practices Act 1974.
government body means:
(a)a department of the Commonwealth, a State or a Territory; or
(b)an agency, authority or instrumentality of the Commonwealth, a State or a Territory; or
(c)a department of the government of a foreign country; or
(d)an agency, authority or instrumentality of the government of a foreign country; or
(e)a department of the government of a part of a foreign country; or
(f)an agency, authority or instrumentality of the government of a part of a foreign country.
infringement notice means an infringement notice under clause2 of Schedule3.
international convention means:
(a)a convention to which Australia is a party; or
(b)an agreement between Australia and a foreign country.
investment means any mode of application of money or other property for the purpose of gaining a return (whether by way of income, capital gain or any other form of return).
make includes attempt to make.
mistake means reasonable mistake of fact.
nominee has the meaning given by section39.
organisation includes:
(a)a body corporate; and
(b)a partnership; and
(c)a government body; and
(d)a court or tribunal; and
(e)an unincorporated body or association.
Express references in this Act to organisations do not imply that references in this Act to persons do not include bodies politic or corporate.
Note:Paragraph 22(1)(a) of the Acts Interpretation Act 1901 provides that person includes a body politic or corporate as well as an individual.
penalty unit has the meaning given by section4AA of the Crimes Act 1914.
person includes a partnership.
Note:For treatment of partnerships, see section585 of the Telecommunications Act 1997.
publish includes:
(a)publish on the Internet; and
(b)publish to the public or a section of the public.
registered political party means a political party, or a branch or division of a political party, that is registered under:
(a)the Commonwealth Electoral Act 1918; or
(b)a law of a State or Territory that deals with electoral matters.
relevant telephone accountholder, in relation to a telephone number, means:
(a)if an individual or organisation is solely responsible for the relevant telephone account—the individual or organisation; or
(b)if 2 or more individuals and/or organisations are jointly responsible for the relevant telephone account—any of those individuals or organisations.
services has the same meaning as in the Trade Practices Act 1974.
supply:
(a)when used in relation to goods or services—has the same meaning as in the Trade Practices Act 1974; or
(b)when used in relation to land—includes transfer; or
(c)when used in relation to an interest in land—includes transfer or create.
telemarketing call has the meaning given by section5.
voice call means:
(a)a voice call within the ordinary meaning of that expression; or
(b)a call that involves a recorded or synthetic voice; or
(c)if a call covered by paragraph(a) or (b) is not practical for a particular recipient with a disability (for example, because the recipient has a hearing impairment)—a call that is equivalent to a call covered by either of those paragraphs;
whether or not the recipient responds by way of pressing buttons on a telephone handset or similar thing.
5 Telemarketing calls
Basic definition
(1)For the purposes of this Act, a telemarketing call is a voice call to a telephone number, where, having regard to:
(a)the content of the call; and
(b)the presentational aspects of the call; and
(c)the content that can be obtained using the telephone numbers, URLs or contact information (if any) mentioned in the call; and
(d)if the telephone number from which the call is made is disclosed to the recipient (whether by calling line identification or otherwise)—the content (if any) that can be obtained by calling that telephone number;
it would be concluded that the purpose, or one of the purposes, of the call is:
(e)to offer to supply goods or services; or
(f)to advertise or promote goods or services; or
(g)to advertise or promote a supplier, or prospective supplier, of goods or services; or
(h)to offer to supply land or an interest in land; or
(i)to advertise or promote land or an interest in land; or
(j)to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(k)to offer to provide a business opportunity or investment opportunity; or
(l)to advertise or promote a business opportunity or investment opportunity; or
(m)to advertise or promote a provider, or prospective provider, of a business opportunity or investment opportunity; or
(n)to solicit donations; or
(o)a purpose specified in the regulations.
(2)For the purposes of paragraphs(1)(e) to (m), it is immaterial whether the goods, services, land, interest or opportunity exists.
(3)For the purposes of paragraphs(1)(e) to (m), it is immaterial whether it is lawful to acquire the goods, services, land or interest or take up the opportunity.
(4)Either of the following:
(a)the supplier or prospective supplier mentioned in paragraph(1)(g) or (j);
(b)the provider or prospective provider mentioned in paragraph(1)(m);
may be the individual or organisation who made the call or authorised the making of the call.
(5)Paragraphs(1)(e) to (o) are to be read independently of each other.
(6)Subsection(1) has effect subject to subsection(7).
Excluded calls—regulations
(7)The regulations may provide that a specified kind of voice call is not a telemarketing call for the purposes of this Act.
6 Continuity of partnerships
For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
7 Crown to be bound
(1)This Act binds the Crown in each of its capacities.
(2)This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
(3)The protection in subsection(2) does not apply to an authority of the Crown.
8 Extension to external Territories
This Act extends to:
(a)the Territory of Christmas Island; and
(b)the Territory of Cocos (Keeling) Islands; and
(c)such other external Territories (if any) as are prescribed.
9 Extraterritorial application
Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia.
Part2—Rules about making telemarketing calls
10 Simplified outline
The following is a simplified outline of this Part:
•Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register.
•Agreements for the making of telemarketing calls must require compliance with this Act.
11 Unsolicited telemarketing calls must not be made to a number registered on the Do Not Call Register
(1)A person must not make, or cause to be made, a telemarketing call to an Australian number if:
(a)the number is registered on the Do Not Call Register; and
(b)the call is not a designated telemarketing call.
Note:For designated telemarketing call, see Schedule1.
(2)Subsection(1) does not apply if:
(a)the relevant telephone accountholder; or
(b)a nominee of the relevant telephone accountholder;
consented to the making of the call.
Note 1:For the meaning of consent, see Schedule2.
Note 2:For the meaning of nominee, see section39.
(3)Subsection(1) does not apply if:
(a)the number was included on a list that was submitted by the person under subsection 19(1); and
(b)during the 30day period ending at the end of the day on which the call was made:
(i)the person received information under subparagraph 19(2)(d)(i) in response to the submission of the list, but that information did not state that the number was registered on the Do Not Call Register; or
(ii)the person was informed under subparagraph 19(2)(d)(ii), in response to the submission of the list, that the number was not registered on the Do Not Call Register; or
(iii)under subsection 19(3), in response to the submission of the list, the person was given a list that included the number.
For the purposes of this subsection, a list may consist of a single telephone number.
Note:Section19 deals with access to the Do Not Call Register.
(4)Subsection(1) does not apply if the person made the call, or caused the call to be made, by mistake.
(5)Subsection(1) does not apply if the person took reasonable precautions, and exercised due diligence, to avoid the contravention.
(6)A person who wishes to rely on subsection(2), (3), (4) or (5) bears an evidential burden in relation to that matter.
Ancillary contraventions
(7)A person must not:
(a)aid, abet, counsel or procure a contravention of subsection(1); or
(b)induce, whether by threats or promises or otherwise, a contravention of subsection(1); or
(c)be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection(1); or
(d)conspire with others to effect a contravention of subsection(1).
Civil penalty provisions
(8)Subsections(1) and (7) are civil penalty provisions.
Note:Part4 provides for pecuniary penalties for breaches of civil penalty provisions.
Extended meaning of cause
(9)For the purposes of this section, if:
(a)a person (the first person) enters into a contract or arrangement, or arrives at an understanding, with another person; and
(b)under the contract, arrangement or understanding, the other person undertakes to make, or to cause any or all of the employees or agents of the other person to make, telemarketing calls; and
(c)the other person, or an employee or agent of the other person, gives effect to the contract, arrangement or understanding by making a telemarketing call;
the first person is taken to have caused the telemarketing call to be made.
(10)Paragraph(9)(a) applies to contracts or arrangements entered into, or understandings arrived at, before, at or after the commencement of this section.
12 Agreements for the making of telemarketing calls must require compliance with this Act
(1)A person (the first person) must not enter into a contract or arrangement, or arrive at an understanding, with another person, if:
(a)under the contract, arrangement or understanding, the other person undertakes to:
(i)make telemarketing calls; or
(ii)cause any or all of the employees or agents of the other person to make telemarketing calls; and
(b)there is a reasonable likelihood that some or all of those calls will be made to telephone numbers that, under section14, are eligible to be entered on the Do Not Call Register; and
(c)the contract, arrangement or understanding does not contain an express provision to the effect that the other person will:
(i)in any case—comply with this Act; and
(ii)if subparagraph(a)(ii) applies—take all reasonable steps to ensure that the employees and agents of the other person comply with this Act;
in relation to the making of telemarketing calls covered by the contract, arrangement or understanding.
Ancillary contraventions
(2)A person must not:
(a)aid, abet, counsel or procure a contravention of subsection(1); or
(b)induce, whether by threats or promises or otherwise, a contravention of subsection(1); or
(c)be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection(1); or
(d)conspire with others to effect a contravention of subsection(1).
Civil penalty provisions
(3)Subsections(1) and (2) are civil penalty provisions.
Note:Part4 provides for pecuniary penalties for breaches of civil penalty provisions.
Validity of contracts, arrangements or understandings
(4)A failure to comply with subsection(1) does not affect the validity of any contract, arrangement or understanding.
Part3—Do Not Call Register
13 Do Not Call Register
(1)The ACMA must:
(a)keep; or
(b)arrange for another person (the contracted service provider) to keep, on behalf of the ACMA;
a register of telephone numbers for the purposes of this Act.
(2)The register is to be known as the Do Not Call Register.
(3)The register is to be kept in electronic form.
(4)The register is not a legislative instrument.
(5)The ACMA must begin to comply with subsection(1) as soon as practicable after the commencement of this section.